Zhang (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Temporary Residence Transition stream. The applicant's nominating employer, Austand Pty Ltd, had sought approval for the nomination of the applicant for the position of Conference and Event Organiser. The Administrative Appeals Tribunal, constituted by Member Penelope Hunter, was required to determine whether the nomination had been approved.

The primary legal issue before the Tribunal was the interpretation and application of clause 186.223 of Schedule 2 to the Migration Regulations, which sets out the requirements for an approved nomination in the Temporary Residence Transition stream. This clause mandates that the nominated position must be the subject of an approved nomination application that identifies the visa applicant, and that the nomination must have been approved and not subsequently withdrawn. Further requirements include the absence of adverse information concerning the nominator or associated persons, the continued availability of the position, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the nomination had indeed been approved. Although the Department had initially refused the nomination on 13 September 2018, the Tribunal had previously set aside that decision on 18 October 2021 and substituted a decision approving the nomination. The Tribunal was satisfied that the nomination had not been withdrawn and that the position remained available to the applicant. Consequently, the Tribunal concluded that the applicant met criterion cl.186.223(2).

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant meets criterion cl.186.223(2) of Schedule 2 to the Regulations. The Minister is to consider the remaining criteria for the Subclass 186 visa.